Witches, wise women and magic spells

The product Heks’nkaas (literally ‘witches’ cheese’) has been receiving attention in IP circles for a while now. Levola, the producer of Heks’nkaas, has been embroiled in legal action for a number of years concerning the copyright protection of the flavour of the cream cheese spread.  It has not been able to stop imitators on the grounds of flavour. Recently the Court of Appeal in Arnhem-Leeuwarden asked the highest European court whether flavour can be protected at all under copyright. We will have to wait a while to hear the outcome. Meanwhile, Levola recently took successful legal action over its brand names. On the basis of its Benelux trade mark HEKSENKAAS Levola objected to the registration of the trade mark WITTE WIEVENKAAS (literally ‘wise women’s cheese’). The Benelux Office for Intellectual Property rejected Levola’s opposition. However, on appeal the Court of Appeal in The Hague found that there was, in fact, a likelihood of confusion. According to the Court of Appeal the conceptual similarity compensates for the lack of visual and auditory similarity. The terms ‘witch’ and ‘wise woman’ in the Benelux generally refer to “female magical creatures who possess magical powers, which they use primarily for wicked ends, who strike fear and often live a reclusive life.” Both terms refer to supernatural magical female beings and carry a negative connotation. For that reason, conceptual similarity exists. The fact that in 2017 not everyone is familiar with Twente’s infamous ‘wise women’ is something the Court of Appeal does not find relevant. There is no need for the entire relevant public to know the meaning; a substantial proportion will suffice.

Whether this outcome is justified, is debatable. Is some degree of conceptual similarity really enough to compensate for the visual and auditory differences? It rather seems as though the Court of Appeal was acting under a spell.

Tamilla Abdul-Aliyeva